7 december 2022

CEPEJ(2022)11

EUROPEAN COMMISSION FOR THE EFFICIENCY OF JUSTICE

(CEPEJ)

Promoting mediation to resolve administrative disputes in Council of Europe member states

Council of Europe Recommendation Rec(2001)9 on alternative dispute resolution between public authorities and private parties was supplemented in 2007 by the CEPEJ Guidelines for improving the implementation of Recommendation Rec(2001)9[1]. In 2017, after studying the impact of various Council of Europe mediation tools in its member States[2], the CEPEJ Working Group on Mediation (CEPEJ-GT-MED) was faced with the fact that only few member States either made use, or even knew of, the tools for administrative mediation.

In continuity with the work carried out by the CEPEJ-GT-MED concerning mediation in civil and family matters, the CEPEJ-GT-QUAL[3] therefore decided to carry out a comparative study on the different systems of administrative mediation in Europe[4]. Its first objective was to take stock of the situation and to identify, compile and disseminate good practices in this field. On the basis of this study, it then aimed to explore what the CEPEJ could offer to member States in order to better support them as they develop/improve the use of administrative mediation.

After having taken note of the results of the study, the CEPEJ-GT-QUAL decided to work on the elaboration of a guide for administrative mediation which, using a practical and concrete approach, aims to promote and facilitate the use of administrative mediation in member States. While the guide intends to emphasise the particularities of mediation in administrative matters, it does not attempt to make mediation a substitute for recourse to the judge or to remedy the dysfunctions of the judicial system.

A reminder of the definitions and principles in this area will make it possible to highlight the particularities of mediation to resolve a dispute which includes the administration as a party. The guide also stresses the advantages of the process before proposing the adoption of certain measures intended to promote the widest possible development of mediation in this field. In the majority of cases, these measures are based on examples and good practices which are presented in the annex. 

Definition and principles

Mediation is a structured and confidential process in which an impartial third person assists the parties by facilitating the communication between them for the purpose of resolving the issues in dispute[5].

Mediation may concern an administrative dispute, or a dispute of an administrative nature between administrative authorities and private persons or public officials, the settlement of which is, in principle but not necessarily, the responsibility of the judge competent to settle administrative disputes.

Administrative mediation can take three forms: institutional mediation, conventional mediation and jurisdictional or para-jurisdictional mediation.

Institutional mediation is a process conducted by an institutional mediator, usually from the administration or with the status of an ombudsman. It allows for the resolution of a very wide range of disputes, which are not limited to administrative disputes in the strict sense of the term (those whose resolution is the responsibility of a court). It can be used to settle disputes arising from "maladministration".

Conventional mediation happens when, in order to find a solution to their dispute, the parties agree to request a third-party mediator to help them find a solution to their dispute.

Jurisdictional or para-jurisdictional mediation takes place within the framework of a lawsuit to resolve an administrative dispute. In such cases, the court has already been seized but the parties decide, either by themselves or at the invitation of the judge, to attempt mediation. Court proceedings are then interrupted to make room for the mediation process.

Whatever the form of mediation, the mediator is always an independent third person in relation to the parties. They must be impartial. They must have both legal and technical expertise in the resolution of the conflict in question. They must conduct the procedure within a limited timeframe and respect the principle of confidentiality. The process relies on the goodwill of the parties and once it has begun, their freedom to leave it at any time must be protected. Mediation succeeds when the parties agree on an acceptable solution, thus resolving the dispute or difference.

The mediation process concerns all types of disputes and is not specific to the resolution of administrative disputes. Nonetheless, it appears to be particularly well suited to the resolution of some of them. The actors concerned must be well aware of this, however. The promotion of administrative mediation must allow it to free itself from civil mediation in order to take into account the specificity of the matter it deals with.

I. The benefits of mediation in administrative matters

In administrative disputes, mediation is a process that fosters dialogue between the administration and the users, which contributes to the improvement of the administrative relationship. It is also an instrument for the efficiency and quality of justice: it is a question of rendering justice differently in order to obtain a solution acceptable to both parties within a short time, at a lower cost. It is also a means of preventing legal disputes and, consequently, of resorting to the state judge. Thus, mediation plays a complementary role to that of the courts and "contributes significantly to the protection of individuals in their relations with the administration"[6] .

Improving the quality of the relationship between citizens and administrations. In an administrative dispute, the parties are not on equal footing since the citizen is facing the administration. The mediation procedure is undoubtedly better able to respond to citizens' complaints. It facilitates dialogue.

It is more accessible to citizens. This is especially the case for the most disadvantaged, who often need additional explanations to understand the content of the administration's decisions and thus accept them. The language of mediation therefore has pedagogical value that in itself can be sufficient to clear up disputes.

The mediation process also helps to bring citizens and the administration or administrations closer together, thus preventing the emergence of new conflicts between these parties.

A very broad scope of application. Among the amicable methods of dispute resolution, mediation appears to be an especially suitable process for resolving administrative disputes. Its scope of application is very broad; it is likely to cover all types of administrative disputes (contractual and liability disputes, but also disputes concerning legality).

Mediation seems to be useful for resolving specific types of disputes, especially those arising from town planning decisions or documents, such as when several people dispute a planning permission or document. Dialogue makes it possible to find an appropriate solution and put an end to a whole series of disagreements or misunderstandings that would not be resolved by legal proceedings, since these are not legal disputes in the strict sense. The same applies to social assistance disputes, which generally concern people in precarious situations who, above all, need explanations about certain decisions that they are unable to understand.

Mediation is also a very effective way of resolving disputes arising from contracts concluded by public bodies (contracts and concessions).

Mediation can be very useful for settling disputes between citizens and local authorities concerning the operation of local public services (water, electricity, internet access, etc.). It can also be used to resolve disputes between insured persons and social security bodies.

Mediation can also be used to resolve conflicts between the administration and public servants, when the nature of these conflicts affects the normal functioning of the service.

Mediation is especially suited to resolving disputes that require technical expertise (e.g. disputes between sports federations concerning the organisation of sports events).

Mediation is also proving to be an effective process for resolving difficulties related to the non-enforcement of court decisions by the administration.

In short, the mediation process, in all its dimensions, is likely to bring about a substantial change in the general principles governing the functioning of the administration.[7]

A consensual and confidential process. The parties can end the mediation process at any time. The mediation process is not subject to the adversarial principle, meaning that one of the parties can talk to the mediator without the other parties being present, in accordance with the principle of loyalty. This may be appropriate in cases of moral or sexual harassment in the civil service or in the public services: the victim can speak freely without fear of pressure from the other party.

Confidentiality is still likely to preserve the reputation of an administration or a company in certain sensitive conflicts (human resources management) which could be damaged by media coverage in court.

A tool to improve the efficiency and quality of administrative justice. Mediation allows the parties to decide together, with the help of the mediator, on a comprehensive solution adapted to the various conflicts that may arise in an administrative dispute. By dealing with all the disputes or differences related to a given case, the mediation process integrates all the elements of the debate and leads to a concerted and equitable solution between all stakeholders who are involved in the dispute without being able to claim to be a party before a state court in the strict sense of the term. The solution resulting from mediation then appears to be more effective than the general court solution, which will only settle the administrative dispute in the strict sense (for the resolution of which the court could be seized).

Rapid settlement of disputes. Mediation not only helps to prevent legal disputes, but above all enables disputes to be dealt with quickly and settled within a few months, which is not possible with legal proceedings. For certain administrative disputes it is essential that they be settled rapidly, especially when they concern the allocation of social rights, the performance of a contract, the career of a public official, a town planning permission, or a decision taken by a sports federation concerning the organisation of a sports competition.

II. Measures that can be taken to promote the use of administrative mediation

            Administrative mediation struggles to develop in the majority of Council of Europe member States due to certain obstacles. These could be overcome if member States not only adopted various measures to develop the availability and accessibility of the process, but also the awareness of the different actors involved in mediation[8].

AVAILABILITY

1° Adopt a broad definition of administrative mediation in order to avoid conceptual ambiguities and be able to include all the existing mechanisms that meet the essential elements for successful mediation. Administrative mediation can be institutional, within the jurisdictional framework or purely conventional. The coexistence of different types of processes is quite possible. It has even been found to be more effective.

The vagueness, ignorance or lack of legal basis is one of the main obstacles to the use of mediation in administrative matters.  In some Council of Europe member States there is no legal basis for administrative mediation. When it exists, it is sometimes too general and applies to all mediations without considering the particularities of administrative mediation.

Where the legal basis exists, it may be unintelligible because it is derived from several scattered texts or documents.

Vagueness may also be due to the lack of indication of the scope of application or of the room for manoeuvre left to the administration, which poses difficulties from the point of view of the legal security of the process. Indeed, the administration will not take the risk of committing its administrative or penal responsibility, and the accountants may refuse to execute a public expenditure generated by the amicable solution in order not to take the risk of committing their personal responsibility.

2° Develop a precise legal framework to define the rules and scope of mediation in administrative matters. The legal framework must constitute a common base for all types of administrative mediation: institutional, conventional and jurisdictional. It must be tailored to administrative mediation given the specific nature of administrative disputes.

This legal framework should recall and indicate

o    The principle of confidentiality, a fundamental principle of mediation.

o    The obligations of mediators in order to increase the confidence in mediation of future parties to mediation

o    The importance of ensuring the proper implementation of the mediated agreement

3° Ensure that mediation is introduced at the earliest possible stage, from the pre-litigation phase, well before the jurisdictional conflict crystallises. This requires the definition of a guide to good practice within the administrations in order to set the framework for the procedure and provide the competent services with tools.

4° Develop binding procedures for the settlement of certain administrative disputes.

Recourse to mediation can thus constitute a compulsory prerequisite before the case is referred to the judge.

The implementation of a jurisdictional or para-jurisdictional mediation can be based on an injunction addressed to the parties by the judge to try to settle their dispute amicably, by means of mediation.

The lack of professionalisation of mediators is a structural obstacle to the development of administrative mediation.

5° To professionalise mediators by providing for a list of mediators who are qualified and specialised in the resolution of administrative disputes.

This requires :

o    The definition of the qualifications required to be a mediator

o    The development of an ombudsman statute

o    The dissemination of lists of authorised mediators at national and local level.

o    The development of an ethical charter or code of conduct.

6° Entrust a single body, such as the Ombudsman in countries where this institution exists, with the task of harmonising and articulating the various mediation practices. 

ACCESSIBILITY

Mediation is often presented as a less expensive procedure than administrative litigation. This is the case, for the parties, when the mediator is not paid (mediator-judge, institutional mediation). But when dealing with a professional mediator, the latter must in principle be paid by the parties. However, access to legal aid is not always possible for mediation procedures, or it is only possible if the mediation takes place during a trial.

Moreover, mediation has a cost for the public community. Incentives for the development of mediation are not always accompanied by sufficient financial resources for the training of mediators, the recruitment of magistrates and additional staff to conduct mediation.

7° Deploy the financial means necessary for the development of administrative mediation. Contribute financially to the training of mediation actors: magistrates, administrations, lawyers and people destined to become mediators.

8° Make legal aid accessible to all mediation procedures: jurisdictional mediation, within the administration, but also conventional mediation.

The lack of linkages between the mediation process and the litigation procedure is an obstacle to the development administrative mediation. If the texts or practices do not prepare for the fact that the entry into mediation is likely to interrupt the time limits for judicial appeal and the time limits for guarantees, the parties will have an interest in going directly to court. Likewise, short court deadlines do not give the parties sufficient time to consider the possibility of entering into a mediation process.

9° Organise the linkages between mediation and the administrative trial (suspension and interruption of the appeal and limitation periods) in the procedural rules.

AWARENESS

Some of the main obstacles to the development of mediation are poor knowledge of the process, absence of information, and lack of communication by all the actors involved: administration, lawyers, courts, but also public companies and legal advisers. 

            Ignorance may persist despite awareness-raising texts encouraging the development of mediation. This lack of awareness is evident among local public actors or lawyers, who believe that mediation is a process that is only open to disputes between private persons.

            The spread of a culture of mediation is still hindered by a certain lack of trust of the actors of mediation. The distrust of the citizens, who consider that the settlement of an administrative dispute can only be done before a judge. There is also mistrust on the part of administrations, whose lack of engagement towards the mediation process is regularly denounced. Indeed, some administrations do not wish to "stoop" to dialogue with citizens or fear being controlled by a third party they distrust.

           

Finally, there is also a certain reluctance on the part of lawyers who are not trained in the mediation process and are naturally inclined to exercise their activity before a judge, even though they are the ones who draw up the agreement resulting from mediation.

10° To establish incentives for the broad spread of a culture of mediation:

o    Numerical targets not only for judicial and institutional mediation, but also for administrations in order to encourage them to resort to mediation.

o    Conclusion of reciprocal commitments between the actors of mediation (courts, lawyers and administrations).  

11° Institutionalise mediation referents among institutional mediation actors.

12° Carry out information and communication campaigns for all mediation actors.

13° Publish, in the form of annual reports, figures that give an account of practices in administrative mediation. The publication of these figures should make it possible to monitor the difficulties encountered during the implementation of mediation.

Annex:

Examples of good practices

This annex presents examples and good practices that have inspired proposals for measures that Council of Europe member States could adopt to promote mediation to resolve administrative disputes. These examples are drawn both from the 48 responses to the questionnaire covering 33 Council of Europe member States[9] and from published studies.

The document follows the structure of the guide, and its different measures (by number), presenting examples and good practices for most of them. It also highlights those that tend to favour the availability, accessibility, or awareness raising of all actors of administrative mediation. 

AVAILABILITY

1.1 The broad definition of mediation

In Spain, the Madrid Protocol on Administrative Mediation[10] refers in its Article IV to the transversal definition of mediation used by the 2008 European Directive[11]. According to this definition, mediation is "a structured process, however named or referred to, in which two or more parties to a dispute attempt by themselves, voluntarily, to reach an agreement on the resolution of the dispute with the help of a mediator. This process may be initiated by the parties, suggested or ordered by a court or prescribed by the law of a member State.”

The definition of mediation adopted by the French legislator is a good example. Article L.213-1 of the Code of Administrative Justice employs a very broad definition of mediation in administrative matters which encompasses any type of administrative mediation, and is also inspired by the Directive of 21 May 2008. According to this definition, mediation is understood to be "any structured process, by whatever name it may be called, by which two or more parties attempt to reach an agreement with a view to the amicable settlement of their disputes, with the assistance of a third party, the mediator, chosen by them or appointed, with their agreement, by the court"[12] .

1.2 The coexistence of several types of mediation for better efficiency

In France, disputes of an administrative nature can be the subject of several types of mediation: institutional mediation, conventional mediation (extra-jurisdictional) or mediation organised by the judge (mediation within the jurisdictional framework). As an example, let us look at a dispute related to relations in the civil service: a mediation process can be attempted before a mediator of the administration[13] (institutional mediation) or with the help of a liberal third party chosen by the parties (conventional mediation). In case of referral to the judge, the latter may, either on his own initiative or at the request of the parties, propose a mediation[14]. In the latter case, a mediator will be appointed to try to settle the case amicably. This judge-appointed mediator, to whom the parties will be referred, may be a magistrate (member of the court), a liberal mediator, or sometimes even an institutional mediator[15]. All three types of mediation coexist and are practiced today in France.

The Netherlands offers two possibilities for 'mediation' in administrative matters: the first is extra-judicial, while the second is conducted under the auspices of the judge.

The extra-judicial (institutional) mediation procedure only concerns disputes relating to tender procedures under the Dutch Public Procurement Act 2012: a private person can request the intervention of the impartial Commission of Experts in Public Procurement (COPE) Commissie van Aanbestedingsexpert[16]. The COPE can take two steps: either it tries to find an amicable agreement between the parties in conflict through a mediation procedure, or it delivers an expert opinion on the basis of which the administrative authority can decide to change its course of action in the tendering procedure.

The second type of mediation corresponds to an amicable settlement process before a court. The judge has the option of encouraging the parties to resolve the dispute themselves by reaching an amicable agreement: either they conduct the process themselves within the court, or they refer the parties to an ad hoc mediator.

In Lithuania, two types of mediation coexist: one is jurisdictional, and the other is institutional. The first measure corresponds to an amicable settlement of administrative disputes through the conclusion of a contract, called "peace agreement," signed between the administration and the private person concerned[17]. It can occur during the trial or during its preliminary phase.

The second mediation procedure is conducted prior to any referral to the court, by the members of two public entities, the "Lithuanian Commission on Administrative Disputes" and the "Commission on Tax Disputes"[18]. They are two institutional mediators that have the nature of a collegiate body established for the sole purpose of resolving administrative disputes in a preliminary procedure[19].

In Norway, the so-called "ordinary courts" deal with all cases, including administrative cases[20]. Therefore, according to the Act on Mediation and Procedure in Civil Disputes (Dispute Act)[21], administrative disputes can be settled by court mediation (under the auspices of the judge, if not by the judge himself) or by extrajudicial mediation (outside the court).

Extra-judicial mediation is a procedure conducted before the “conciliation board”. Before a claim can be heard by the competent court, it must be submitted to this "conciliation board". Prior referral is mandatory for disputes involving less than SEK 200,000 and in which the parties are not represented by a lawyer[22].

In court mediation the judge plays a facilitating role. The plaintiff brings the case to court. When the judge requests a statement of defence from the defendant, they inform the parties of the existence of the mediation procedure and, if necessary, proposes, to start the process. The judge is thus able to assess, on a case-by-case basis, whether the case is suitable for mediation.

2.1 The development of a specific legal framework for mediation in administrative matters

In France, since 2016 the Code of Administrative Justice contains an entire chapter that defines the applicable rules that are specific to administrative mediation[23]. The provisions of this chapter cover any mediation, whether initiated by the mediated parties themselves or by the judge[24]. This framework now serves as a "model" for other mediations. Thus, Article 81 of Law No. 2019-1461 of 27 December 2019 instituted the territorial mediator, who may be appointed by the territorial authorities (regions, departments and communes) and whose status follows the rules of the administrative justice code.

In Spain, while there is no national text regulating administrative mediation, some autonomous communities have adopted what is called an administrative mediation protocol. This is the case, for example, in the Canary Islands, Murcia, Catalonia, Madrid and Valencia. These protocols define the specific rules applicable to administrative mediation.

In Switzerland, the cantons of Geneva and Vaud have adopted a text on administrative mediation. For the canton of Vaud, this is the law on administrative mediation (LMA) of 19 May 2009. For the canton of Geneva, the Constitution of the Republic and Canton of Geneva (Cst-GE), revised in 2012, introduced, in article 115, the principle of administrative mediation. Its implementation is specified in the Law on administrative mediation of 2015 (Lméd-GE).

In Portugal, the Code of Procedure in the Portuguese Administrative Courts specifies the rules applicable to administrative mediation[25] specifically.

In Ukraine, since 2017, the Code of Administrative Justice contains numerous provisions specifying the rules specifically applicable to administrative mediation[26].

2.2 Defining the scope of administrative mediation

Spain is a good example in this respect. Some Autonomous Communities determine the scope of application of administrative mediation by means of an open list[27]. For example, Article VI of the Madrid Protocol on Administrative Mediation specifies the scope of application of administrative mediation in three points: the so-called formal rules of administrative mediation, its material scope of application and a list of cases that aims to solve the questions that may arise in the implementation of the mechanism in advance[28].

The protocol thus draws up a list of matters that can be the subject of administrative mediation: disputes involving compensation, town planning, the environment and the organisation of the territory, nuisances as well as unhealthy and harmful activities, administrative failure and inertia, the execution of measures relating to disciplinary and administrative sanctions, the civil service, the collection of taxes and public charges in the event of bankruptcy of the debtor, etc.

The resolution of issues concerns those hypothetical situations in which the administration has discretionary power, allowing it to adapt to mediation, or difficulties in the execution of judgments and questions relating to the impacts of judgments.

2.3 Defining the guiding principles of mediation

In France, Article L. 213-2 of the Code of Administrative Justice provides that "unless the parties agree otherwise, mediation is subject to the principle of confidentiality". It is also specified that the mediator's findings and the statements made during the mediation process may not be disclosed to third parties, nor may they be invoked or produced in the context of a judicial or arbitral proceeding, without the consent of the parties. Secondly, the same article lists the possible exceptions to the principle of confidentiality:

1° If there are overriding reasons of public policy or reasons relating to the protection of the best interests of the child or the physical or psychological integrity of a person;

2° When the revelation of the existence or the disclosure of the content of the mediated agreement is necessary for its implementation.

The "ethical charter for mediators in administrative disputes"[29], drawn up by the French Council of State in 2016, insists on not only confidentiality but also on other guiding principles of administrative mediation: information, consent, and freedom of the parties.

In Switzerland, Article 18 of the law on administrative mediation of the canton of Geneva of 17 April 2015, officially entitled secrecy, professional secrecy and the right to refuse to testify, imposes professional secrecy to the mediator for all matters entrusted to them in the exercise of their duties, or of which they become aware in the exercise of these duties. Similarly, the Ombudsman's staff are bound by professional secrecy obligations set out in Article 9A of the General Law on the personnel of the cantonal administration, the judiciary and public medical establishments of 4 December 1997. The same article also provides that "the Ombudsman and his staff shall not testify in any administrative, civil or criminal proceedings concerning the findings they have made in the performance of their duties".

2.4 Clarifying the obligations of mediators to increase confidence in the system

In France, Article L. 213-2 of the Code of Administrative Justice specifies that the mediator shall carry out their mission with impartiality, competence, and diligence. The "Ethical charter for mediators in administrative disputes"[30], drawn up by the French Council of State in 2016, gives more details on the "principles guaranteeing the quality of the mediator": 1. the mediator presents guarantees of probity and good repute; 2. the mediator is competent; 3. the mediator is independent, loyal, neutral, and impartial; 4. the mediator is diligent; 5. the mediator is disinterested.

2.5 Ensuring the proper implementation of the mediated agreement

In France, Article L. 213-4 of the Code of Administrative Justice provides that "the court may, in all cases where a mediation process has been initiated (...) approve and give enforceability to the agreement resulting from the mediation".

4. Developing binding procedures for the settlement of certain disputes

            The development of binding procedures for the settlement of certain disputes favours the promotion of mediation and participates in the spread of a culture of mediation. Three examples deserve to be mentioned: mandatory prior mediation (MPO) in France, the "Special Educational Needs and Disabilities" (SEND) procedure in the United Kingdom, and the attempt at conciliation with the administration in Belgium[31] .

The MPO in France[32] concerns disputes relating to the civil service and certain social disputes. It pertains to the challenge of specific types of individual administrative decisions listed in a restrictive manner by Decree No. 2022-433 of 25 March 2022 on the compulsory prior mediation procedure, applicable to certain civil service disputes and certain social disputes[33]. In addition to defining the decisions concerned by the MPO, the articles of the same decree designate the agents competent to organise the MPO as well as the mediators who must intervene in the process[34].

The UK’s SEND procedure is a compulsory mediation procedure which applies to disputes about local authority decisions on education, health, and statutory care. Before resorting to the Special Dispute Resolution Tribunal (SEND), the claimant is required to consider mediation in a 'mediation briefing' in order to make an informed decision as to whether to attempt mediation to resolve their dispute. If the applicant chooses mediation, the public body is obliged to enter into mediation with the applicant.

In Belgium, the 'prior conciliation attempt in the administration' is a procedure for the amicable resolution of disputes in the civil service. The law requires the implementation of such a measure prior to the exercise of recourse[35].

5.1 The professionalisation of mediators

In Spain, the mediator must have "a university degree or higher professional training as well as specific training in mediation; the decree of 27 December 2013 provides for the need for knowledge of law, psychology, ethics, and mediation techniques[36]. It also specifies the amount of training required: the initial training lasts at least 100 hours, of which the practical portion must constitute at least 35%. It also provides for continuous training every five years, which must last at least 20 hours and include a purely practical component[37]. These rules apply to all types of mediation including administrative mediation.

At the local level, the Madrid Protocol on Administrative Mediation, for example, refers to specific training requirements for becoming a mediator in administrative disputes, while requiring that mediators also be specialised in administrative law. Similarly, the Canary Islands Protocol requires the mediator to specialise in administrative law.

In the UK, Special Educational Needs and Disabilities (SEND) mediators must comply with national standards of practice and a code of conduct for mediators. Indeed, only accredited mediators can mediate in these SEND disputes. Accredited SEND mediators are on a list managed jointly by the Civil Mediation Council and the College of Mediators.

In France, the mediator, whether an independent natural person or a legal person (a mediation centre or association)[38], must have the required qualification in relation to the nature of the dispute, either through past or present activity. They must also have training or experience in the practice of mediation[39] .

In the 2016 Ethical Charter for Mediators in Administrative Disputes, the Council of State gave further details regarding the required competences of the mediator in administrative disputes: (a) have at least five years' professional experience in the field of litigation; (b) have a qualification in mediation techniques and provide evidence of mediation training or significant experience in this field, the quality of which is assessed by the court; c) undertake to update and perfect their theoretical and practical knowledge by regularly informing themselves on the legal news in his field of competence, as well as on the current state of the art of negotiation methods and developments in the field of alternative dispute resolution, by participating in events (colloquia, workshops, debates) or training courses on these topics.

5.2 Disseminating a list of authorised mediators

In the Netherlands, lists of qualified mediators are published and available on the internet. The website of the Federation of Dutch Mediators (MFN)[40] provides a general index of all qualified mediators, indicating their specific fields of expertise. The index is equipped with a search engine that allows one to search for a mediator who is particularly qualified in the resolution of administrative disputes[41].

In Spain, there is a register of mediators at the Ministry of Justice[42]. Some Autonomous Communities also keep registers of mediators in administrative disputes which are open and can be consulted by interested parties.

ACCESSIBILITY

7. The public authority's assumption of responsibility for the mediation procedure

In Germany, mediation "within the court system" is mostly carried out by judges in the courts. This has been achieved by deploying resources for mediation. Thus, the financial contribution to the training in mediation of magistrates is implemented in all German courts[43].

In France, institutional mediations are in principle covered by the community. This is the case for compulsory prior mediation but also for the territorial mediator instituted by law n° 2019-1461 of 27 December 2019. However, it appears that public investment must go beyond free of charge: French local authorities are demanding a contribution from the State in order to be able to set up this new mechanism[44].

8. The generalisation of legal aid to all mediation procedures

It appears that purely voluntary (conventional) administrative mediation is not eligible for legal aid in any of the member States. On the other hand, legal aid is available for mediation in the judicial context, except for the case of Germany where mediation is usually conducted free of charge by the magistrates themselves. Access to legal aid for mediation proceedings in France and Belgium is possible under the same conditions as for court proceedings.

In the Netherlands, legal aid can cover any possible administrative mediation[45]. This means mediation by an institutional mediator or in court proceedings.

9. Organising the linkages between mediation and administrative proceedings

In Portugal, recourse to mediation suspends limitation periods from the date of the signature of the agreement to enter mediation. The limitation periods begin again from the conclusion of the mediation procedure initiated by the refusal of one of the parties to continue the procedure, when the maximum duration for the procedure has been reached, or when the mediator determines the end of the procedure.

In France, "the time limits for legal recourse are interrupted and the statute of limitations is suspended from the day when, after the dispute has arisen, the parties agree to resort to mediation or, in the absence of a written agreement, from the day of the first mediation meeting. They shall start running again from the date on which either or both of the parties or the mediator declare that the mediation has ended. The limitation periods shall start running again for a period of no less than six months"[46].

AWARENESS

10-1 Setting numerical targets for court mediation

In France, in order to raise awareness of the administrative courts to direct cases to mediation, the Council of State has set a reasonable target of 1% of registered applications per year[47].

10-2. Concluding reciprocal commitments between mediation actors

In France, the Council of State concluded a national framework agreement with the National Council of Bars in 2017 on the implementation of mediation in administrative disputes. Through this agreement, 'The parties undertake to promote the use of mediation among lawyers, magistrates, public actors and litigants and to implement any action aimed at facilitating access to quality administrative mediation at the initiative of the parties or the court, within the framework of a structured process conducted by a competent third party, and in the presence of the parties who may be accompanied by their counsel'[48].

Similarly, other agreements have been signed at local level by administrative courts and administrative courts of appeal. For example, a framework agreement on administrative mediation was signed between the Strasbourg administrative court, the Nancy administrative court of appeal, the city of Colmar and Colmar agglomeration in May 2022[49]. Similarly, a partnership agreement was concluded between the administrative court of Marseille and the association "Marseille Médiation" in September 2022[50], and a partnership between the administrative court of Montpellier and the national family allowance fund (Caisse d'allocations familiales, CAF)[51].

In Spain, an agreement was reached in June 2017 between the General Council of the Judiciary and the Madrid Bar Association to apply mediation to conflicts with the public administration[52] .

11. Institutionalising the mediation referents

In France, in 2017, the Council of State created a committee called "administrative justice and mediation" (JAM), which is responsible for piloting mediation in all administrative jurisdictions. In addition to this committee working at national level, "mediation referents" have been appointed in administrative courts and administrative courts of appeal to guide mediation at local level and raise awareness of mediation, both among members of the courts and the public.

Example of good practice at the administrative court of Strasbourg. In order to raise the awareness of the benefits of mediation of the parties, the Strasbourg administrative court created a new tool for a more effective offer of mediation, called the "2-in-1 order". With this order, after having studied the file, the magistrate mediation referent, offers the parties the opportunity to consider mediation as a possible way of resolving their dispute and simultaneously appoints a mediator. The mediator's task is to inform the parties about mediation and the reasons why their dispute is suitable for mediation. If the parties are convinced, the mediation will immediately be implemented by the mediator already appointed by the court.

12. Carrying out information and communication campaigns

In France, since the 2016 reform, the administrative jurisdiction has organised numerous events with the aim of raising awareness of administrative mediation. For example, in 2018 the French Council of State organised the "first national conference on administrative mediation", an event that brought together more than 300 participants: administrative judges, lawyers, mediators, mediation centres, public actors, etc. Some of the topics that were discussed included: mediation in the civil service, police disputes, urban planning, hospitals and the experimentation of mandatory prior mediation. The event is still accessible on video[53].

Other events are organised by local courts and administrative tribunals on administrative mediation, in partnership with bar associations and local public administrations[54].

Educational sheets to explain the mediation process are also available on the websites of the French administrative courts[55].

13. Publication of statistics on mediation practice

The Monegasque "High Commission for the Protection of Rights, Freedoms and Mediation"[56] publishes an annual activity report on its website, indicating the areas of intervention, statistics on the number of mediations, the success rate, etc.

In France, the Council of State publishes the annual activity report on its website, which includes all the activities of the various courts during the past year. Mediation is now included among the jurisdictional activities of the administrative courts and tribunals[57].

In addition, many French institutional mediators publish statistics on the mediations carried out in their activity reports: the “Pôle emploi” mediator[58], the mediator for businesses, the mediators of different cities such as the mediator of the city of Paris[59], or the defender of rights[60]. For example, the latter publishes the types of complaints, the subjects of interventions, the statistics, the success rates, and so on in its annual report

In Switzerland, the Bureau cantonal de médiation administrative (BCMA) in Geneva, for example, publishes an annual activity report, which includes statistics on mediations conducted during the past year, as well as examples of interventions[61].